Skip to content

Latest Stories

Top Stories

The truly Supreme Court

The truly Supreme Court
Getty Images

William Natbony is an attorney and business executive specializing in investment management, finance, business law and taxation. He is the author of The Lonely Realist, a blog directed at bridging the partisan gap by raising questions and making pointed observations about politics, economics, international relations and markets.

With presidential power subject to increasing legislative and judicial constraints, and with Congress deadlocked, a muscular Supreme Court is increasingly tipping the scales above its weight.

Those who believe that America’s “Rule of Law” is immutable have had that belief shattered by the Supreme Court, most noticeably by its decision in Dobbs v. Jackson Women’s Health Organization. That’s because America’s judiciary today is an instrument of partisan policymaking.

The Federal courts were once a Constitutional stabilizer, a source of durable consistency. Widening political divisiveness has changed that. Justices are being selected based on their policy purity rather than their legal acumen. President Trump in 2017-2021 worked closely with the Republican majority in the Senate (that for 294 days had refused to consider President Obama’s Supreme Court nominee) to appoint three carefully-vetted Supreme Court policy purists.

Of the Supreme Court’s nine members, five are doctrinal originalists who constitute a voting majority. With Congress fractured, this activist Supreme Court majority has attained “truly supreme” status in American government. The Court no longer is merely enforcing laws. It’s making new laws. It no longer feels bound by precedent. It’s overturning existing precedents. With Congress and the President divided, the Supreme Court has the final say on every law and every Constitutional question. And what it is saying mostly mirrors the policy goals articulated by President Trump, who appointed 28 percent of all currently-sitting Federal judges. The consequence is that both parties now follow the “Mitch McConnell Rule”: Control of the Senate means control of the judiciary, and control of the judiciary means control of America’s democracy.

Sign up for The Fulcrum newsletter

Four yet-to-be-decided cases of significant consequence remain on this term’s Supreme Court docket. They may effectuate the sort of deep changes intended by Trump-McConnell. A fifth and sixth already have been decided, one of which surprised observers.

Two eagerly-awaited cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, focus on the question of whether race may be used in considering university admissions. Although commentators had been predicting that the Court will hold that race no longer may be a consideration in admissions, that seemingly foregone conclusion now is being questioned given this past week’s decision in Allen v. Milligan, discussed below. The odds nevertheless favor such an outcome based on Justice Alito’s statement during oral argument that, “College admissions are a zero-sum game and if you give a ‘plus’ to a person who falls within the category of under-represented minority, but not to somebody else, then you are disadvantaging the other student.”

The third case, 303 Creative v. Elenis, questions whether a business owner can rely on his First Amendment free speech right to deny services to same-sex couples in violation of Colorado’s anti-discrimination laws. The Supreme Court previously ruled in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al. that religious beliefs are Constitutionally prioritized over anti-discrimination laws, a result that has led commentators to speculate that the Court will double down on that holding.

A fourth case, Sackett v. Environmental Protection Agency, decided by the Supreme Court on May 25th, precisely as Trump-McConnell would have wished, addressed the extent to which Congress can delegate power to Federal agencies. Although all nine Justices agreed that the EPA had exceeded its authority in applying the Clean Water Act to the Sacketts’ property, a five-Justice majority did so by significantly narrowing the EPA’s authority, redefining “wetlands” by holding that only waters that have a “continuous surface connection” to lakes and rivers that affect interstate commerce are environmentally protected by the Clean Water Act (a test that Justice Kavanagh found to “depart from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents”). The result is that an estimated 59 million acres of wetlands have been removed from EPA jurisdiction.

The fifth case, Allen v. Milligan, was decided by a 5-4 Supreme Court majority on June 8th. In a ruling that surprised observers, the Court held that Alabama had violated Section 2 of the Voting Rights Act by acting with a “racially discriminatory motivation” in redrawing voting districts. Commentators had expected the Court’s conservative majority to rule in favor of Alabama, validating the Alabama legislature’s 2021 redistricting of seven seats in the House of Representatives to pack black voters, who constituted ~27 percent of registered voters, into a single black-majority district to dilute their vote.

Had the Supreme Court ruled in favor of Alabama, legislatures in all 50 States would have been given the green light to gerrymander electoral maps based on race. In an opinion written by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, and Jackson (with Justice Kavanaugh concurring), a narrow majority held that although the Voting Rights Act “may impermissibly elevate race in the allocation of political power…, a faithful application of our precedents and fair reading of the record before us do not” support the Alabama legislature’s racially-motivated gerrymander. The Court made it clear that the Voting Rights Act does not require the adoption of districts that violate traditional redistricting principles. It limits judicial intervention to “those instances of intensive racial politics” where the “excessive role [of race] in the electoral process … denies minority voters equal opportunity to participate.”

In the sixth case, Moore v. Harper, the Court has been asked to allow State legislatures to set the rules for Federal elections even if those rules violate State constitutions, relying on an interpretation of Article 1 of the Constitution that states that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof” (the “independent state legislature theory”), framing a potentially momentous parsing of Federalism and states’ rights.

Moore initially was on appeal from a ruling by the North Carolina Supreme Court that struck down the North Carolina legislature’s gerrymandering of Congressional districts as “unconstitutional beyond a reasonable doubt.” However, the composition of North Carolina’s Supreme Court changed in November 2022 from a 4-3 Democratic majority to a 5-2 Republican majority, and the newly-constituted Republican majority promptly reversed “itself” and held that the North Carolina legislature’s determination could not be challenged. That ruling ought to moot the Supreme Court’s review and compel dismissal, which is what both sides argued. However, Republicans from the North Carolina legislature have petitioned the Court to decide the case. Should the Court elect to do so and uphold the North Carolina legislature’s unfettered power to interpret election laws, all 50 states’ legislatures would be free to violate their own constitutions to set voting rules and allow their legislatures to use partisan criteria to gerrymander voting maps. That would create quite the 2024 election scenario!

The Supreme Court historically has been wary of challenging long-standing precedent or addressing socially-sensitive issues that lack the support of a clear majority of the American public. It followed a self-imposed policy of selecting cases unlikely to be politically disruptive and addressing controversial issues only after lower courts had thoroughly wrestled with them. The Court’s docket and its decisions over the past three years, however, have taken a decidedly different activist turn. The partisan politicalization of the Court has had consequences that have included empowering Justices to act based on personal belief rather than existing law. At the same time, ethically questionable actions (including the leak of the Dobbs opinion and revelations about economic perks) have undercut the Court’s legitimacy. With seatbelts firmly buckled, expect the wild ride to continue.

Read More

Thomas Main

"I think the roots of racism run deep in this country. This means that the potential audience for illiberal racialist movements is much deeper than the potential audience for anarchism and communism," said professor Thomas Main

Harry Frank Guggenheim Foundation

Illiberal ideas are having a negative effect on our political culture

Berman is a distinguished fellow of practice at The Harry Frank Guggenheim Foundation, co-editor of Vital City, and co-author of "Gradual: The Case for Incremental Change in a Radical Age." This is the first in a series of interviews titled "The Polarization Project."

In a 2022 speech at Independence Hall in Philadelphia, President Joe Biden issued a dramatic warning: Democracy in the United States is “under assault,” he announced. Biden declared that the dangers of rising extremism, particularly from “MAGA Republicans,” posed a “clear and present danger” to the country.

In making this claim, Biden was echoing the sentiments of countless pundits, think tanks, and editorial pages that have been warning of a “coming crisis.” According to Rachel Kleinfeld of the Carnegie Endowment for International Peace, "Ideas that were once confined to fringe groups now appear in the mainstream media. White-supremacist ideas, militia fashion, and conspiracy theories spread via gaming websites, YouTube channels, and blogs, while a slippery language of memes, slang, and jokes blurs the line between posturing and provoking violence, normalizing radical ideologies and activities."

Keep ReadingShow less
People walking out of a polling station

Two people leave a polling station in London after voting in July 4.

Hugh R Hastings/Getty Images

Watching the U.K. election gives a feeling of electoral envy

Sheehan Zaino is a professor of political science and international studies at Iona University, Bloomberg political contributor and senior democracy fellow at the Center for the Study of the Presidency & Congress

Many Brits were perplexed when Rishi Sunak called for general elections, particularly given polls suggesting his party would lose. The results prove their concerns were valid.

As an American, I questioned the timing of the election as well, although for a very different reason.

Was the choice of a rare summer poll, on our Independence Day, meant to stick it to us? By choosing our nation’s birthday to go to the polls, perhaps the Brits were trying to rub our nose in the fact that for all our Framers got right (and there’s a lot!), there are a few areas where they faltered, primary among them our electoral process.

Keep ReadingShow less
People seated ina  large room

Attendees at the Braver Angels convention watch the presidential debate.

Jeff Sevier

Building civic hope through Braver Angels

Boyte is co-founder and senior scholar of public work philosophy at the Institute for Public Life and Work.

Last month’s Braver Angels convention in Kenosha, Wis., began with perhaps the largest debate watch party in the nation. Around 700 delegates observed the exchanges between Donald Trump and Joe Biden on a giant screen in the chapel of Carthage College on the shore of Lake Michigan. Equal numbers of Republicans wearing red lanyards and Democrats wearing blue ones, roughly 300 of each, with 170 independents and “others” identified by yellow and white, mingled together.

To emphasize the BA mission of bridging America’s toxic polarization, the site for the convention was chosen because Kenosha is midway between Milwaukee, host of the Republican convention, and Chicago, where the Democratic convention will take place.

Keep ReadingShow less
Meat case at the grocery store
Mostafa Bassim/Anadolu via Getty Images

Soaring grocery prices are not acts of God

Hill was policy director for the Center for Humane Technology, co-founder of FairVote and political reform director at New America. You can reach him on X @StevenHill1776.

Since the pandemic, going to the grocery store has become a jarring experience. On a recent visit, I packed my purchased items into my tote bag and then gawked at the receipt in disbelief.

I’m not alone. Griping about the high cost of groceries has become a national pastime. It’s not just a figment of our imaginations: Grocery prices have soared nearly 27 percent since 2020, higher than overall inflation.

Keep ReadingShow less